The executing court has to follow the procedure laid down in Order XXI Rule 34, where the decree in question provides for execution of a document.

In the matter of Rajbir Vs. Suraj Bhan & Anr., Civil Appeal No. 1700 of 2022, decided by the Hon’ble Supreme Court on 28.02.2022

Facts of the case:

The Respondents filed for execution of decree 04.01.2013, wherein the Appellant was directed to execute and register the sale deed of the suit property in favour of the Respondents in accordance with the agreement to sell and the Respondents were also directed to deposit the remaining part of sale consideration within one month. The Respondents submitted a draft sale deed before the executing court, which allowed the same vide order dated 30.05.2019 and appointed a commissioner for execution of the said sale deed.

The Appellant challenged the order dated 30.05.2019 before the High Court, but the same was dismissed. Before the Hon’ble Apex Court, the Appellant contended that the executing court was duty bound to provide the draft sale deed to the JD/Appellant and to consider his objections and thereafter follow the procedure therein, however, since no opportunity was granted to the Appellant to submit his objection, the order of the executing court is in contravention of Order XXI Rule 34 of CPC.

Analysis of the Court-

The Hon’ble Court noted that in the present case, the decree in question provides for the execution of the document, therefore Order XXI Rule 34 is clearly attracted.

Order XXI Rule 34 contemplates that if the judgment debtor neglects or refuses to obey the decree, the decree-holder is to prepare a draft of the document. The draft of the document (sale deed in the present case) must further be in accordance with the terms of the decree. It is to be delivered to the court. Thereupon, it is not required that the decree holder must directly deliver it to the judgment debtor. The procedure, therefore, is that the decree holder must make it available to the Court. Under Order XXI Rule 34, it becomes the duty of the court to thereupon cause the draft to be served upon the judgment debtor. There must be a notice inviting objections and the court may fix a time within which objections are to be filed. The judgment debtor may or may not object. Order XXI Rule 34 sub-rule (3) contemplates a situation where the judgment debtor objects. This is to be contained in writing within the time provided. The court is duty bound to make an order approving or altering the draft as it thinks fit. This is of considerable importance having regard to what may follow subsequently on the strength of the decree. It is also important from the point of view of the role of the executing court which is to act in conformity with the decree.

The Court further noted that “it is well settled that the execution court cannot go beyond the decree. The decree must be executed as it is. Though, it is indeed open to the executing court to construe the decree; it cannot go beyond the decree. Therefore, when objections are filed pointing out in a given case that the proposed draft of the sale deed is not in conformity with the decree, it becomes the duty of the executing court to apply its mind and to make alterations in the draft, if needed, to make it in conformity with the decree. It will be thereafter that the decree holder is to deliver it to the court with the alterations if any made by the court, on proper stamp paper, if required and the execution of the document is effected by the court or the officer appointed. There are other formalities contemplated in regard to registration, all of which take place only after the procedure which is contemplated in Order XXI Rule 34 sub-rule (1) to (4) is followed”.

In the present case, the Hon’ble Apex Court held that the approach of the executing court in not inviting objections of the Appellant to the draft sale deed and directly appointing a commissioner to execute the said sale deed